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ELCPartially AllowedELC Suit at Mombasa (number not stated in judgment)· [2025] KEELC 1185 (KLR)

Yulu & 3 others v Nzuki & 2 others (Officials and Representatives of Independent Faith Baptist Churches of Kenya) (Environment & Land Case 192 of 2018) [2025] KEELC 1185 (KLR)

Environment and Land Court
12 March 2025
3,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa ruled that a national church organization held Tiwi land in trust for the local church and must transfer it.

What this practically means

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Executive summary

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The 1st to 3rd plaintiffs, officials of Tiwi Independent Faith Baptist Church, and the 4th plaintiff, its founding trustee, sued the national officials of Independent Faith Baptist Churches of Kenya for a declaration that the organization held Land Parcel No. Kwale/Tiwi/1428 in trust for the church, or alternatively that the organization's title had been extinguished by adverse possession, and for transfer of the property. The defendants denied the trust, asserted ownership, and counterclaimed for striking out of the plaint, a declaration of ownership and general damages. The court framed three issues: ownership, appropriate orders, and costs. It held that under section 26 of the Land Registration Act title vests in the registered proprietor but trust is an overriding interest under section 28 which, though unregistrable, must be proved. Relying on PW1's testimony that the land was purchased in 1982 with donations from the USA coordinated by him and Robert Williams and registered in the organization's name because the church was not yet registered, corroborated by DW1's admissions, the court found a constructive trust in favour of the church. The old constitution's article 12, duplicated by section 7 of the amended constitution, provided for reversion of land to a local church upon withdrawal following a two-thirds members' resolution. The adverse possession claim failed because a beneficiary under a trust cannot be in adverse possession against the trustee and possession was not proved. The undefended counterclaim also failed for want of proof on a balance of probabilities. Judgment was entered for the plaintiffs with a declaration of trust, an order for transfer within 90 days (with the Deputy Registrar empowered to execute documents in default), and costs; the counterclaim was dismissed with costs.

Key legal issues

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01

Whether the organization holds Land Parcel No. Kwale/Tiwi/1428 in trust for the church

Holding

A constructive trust was established in favour of the church; the land was bought with donations from the USA coordinated by the 4th plaintiff and Robert Williams and registered in the organization's name solely because the church was not yet registered

Reasoning

Section 26 LRA vests title in the registered proprietor, but trust is an overriding interest under section 28 that must be proved. PW1 testified the property was registered in the organization's name to hold in trust for the unregistered church. DW1 admitted the organization did not participate in the purchase, and DW2 and DW3's evidence did not materially challenge the trust claim; the court invoked the constructive trust doctrine as approved in Shah v Mombasa Bricks & Tiles and Soulos v Korkontzilas.

02

Which constitution of the organization governed the withdrawal and release of the land

Holding

The old constitution was in force when the suit property was registered; moreover, section 7 of the new constitution duplicated article 12 of the old one, so under either version, on a 2/3 members' resolution to withdraw, the title reverts to the local church

Reasoning

The defendants pegged the amendment at about 2015 but were unsure and produced no Registrar's authorisation. Since only two constitutions were spoken of and the property was registered in 1982, the old constitution must have applied. The court noted section 7 of the new constitution was a verbatim duplication of article 12 of the old, retaining the reversion provision, so the plaintiff's claim flowed under either version.

p. 5
03

Whether the plaintiffs proved adverse possession

Holding

No; a beneficiary under a trust cannot be in adverse possession against the trustee, and possession was not proved

Reasoning

Having found the organization held the land in constructive trust, the church was the beneficial owner throughout and time could not run in its favour. Further, none of the plaintiffs proved actual possession. The court applied Halsbury's principle that time runs only where the true owner has ceased to be in possession. The adverse possession claim therefore failed even though the trust claim succeeded.

p. 6
04

Whether the defendants' counterclaim was proved

Holding

Dismissed; even though undefended, the counterclaimants had to prove their claim on a balance of probabilities and failed, and the trust finding rendered it a non-starter

Reasoning

The defendants' defence amounted to mere denials and they tendered no evidence supporting the counterclaim. DW1 admitted the organization did not participate in the purchase. An undefended claim does not relieve the claimant of the evidential burden; having found a constructive trust in favour of the church, the organization could not assert ownership against the church.

p. 6

Legal principles established

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  • A registered proprietor's title can only be challenged on proof of fraud, unprocedurality, illegality or corruption
  • Trust is an overriding interest under section 28 of the Land Registration Act; registration of a trust is not necessary but it must be proved
  • A party who holds title in constructive trust for another cannot claim to own that property
  • A beneficial owner in possession under a trust cannot claim adverse possession against the trustee, and possession must be proved
  • An undefended counterclaim must still be proved on a balance of probabilities

Court orders

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  1. 1.A declaration that the Independent Faith Baptist Churches of Kenya was holding Land Parcel No. Kwale/Tiwi/1428 under trust for Tiwi Independent Faith Baptist Church, its beneficial owner
  2. 2.An order that Independent Faith Baptist Churches of Kenya transfer Land Parcel No. Kwale/Tiwi/1428 to Tiwi Independent Faith Baptist Church of Kenya within ninety (90) days, and in default, the Deputy Registrar of the court to execute all necessary documents to give effect to the order
  3. 3.Plaintiffs awarded costs of the suit
  4. 4.Defendants' counterclaim dismissed with costs

Authorities

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Legislation

  • Land Registration Act, Chapter 300 of the Laws of Kenyasection 26
  • Land Registration Act, Chapter 300 of the Laws of Kenyasection 28
  • Evidence Act, Chapter 80 of the Laws of Kenyasection 107
  • Civil Procedure Act, Chapter 21 of the Laws of Kenyasection 27
  • Societies Actnot specified

Cases cited (5)

  • Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR)
    [2023] KESC 106 (KLR)
  • Soulos v Korkontzilas, [1997] 2 SCR 217
    [1997] 2 SCR 217
  • M'Tharanju versus M'Manyara [2022] KEELC 2900 (KLR)
    [2022] KEELC 2900 (KLR)
  • Daniel Otieno Migore versus South Nyanza Sugar Co Ltd (2018) eKLR
    (2018) eKLR
  • Adetoun Oladeji (NIG) versus Nigeria Breweries PLC SC 91/2002
    SC 91/2002
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute touching on title to land (Land Registration Act); provisions cited include sections 26, 28 of the Land Registration Act, section 107 of the Evidence Act and section 27 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Yulu & 3 others v Nzuki & 2 others (Officials and Representatives of Independent Faith Baptist Churches of Kenya) (Environment & Land Case 192 of 2018) [2025] KEELC 1185 (KLR)", Case Analysis (2025). ELC Suit at Mombasa (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1185/eng@2025-03-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.